How to Avoid Prison for First-Degree Residential Burglary?

Posted by Ronald D. HeddingAug 18, 2022

In Los Angeles county, there are many residential burglaries, and there's a presumption in the law that if someone commits a residential burglary, they will go to prison. 

In California, if you unlawfully enter somebody's home, such as a house, apartment, rented room, or recreational vehicle, steal something or commit a felony, you can face first-degree residential burglary under Penal Code 460 PC.

How to Avoid Prison for First-Degree Residential Burglary?

This law makes this type of burglary a first-degree felony offense, while other types of burglaries are second-degree. For example, burglary of a commercial structure is a “wobbler” that can be charged as either a misdemeanor or felony crime.

First-degree residential burglary means unlawfully entering an "inhabited dwelling place," meaning somebody lives there but they don't have to be home at the time of the burglary. In other words, a dwelling place is considered "inhabited" if someone sleeps or stores possessions there.

Under Penal Code 459 PC, burglary is entering any commercial or residential structure or locked vehicle intending to commit grand theft, petty theft, or a felony once inside.

The intent to commit theft or a felony must be formed before entry. Perhaps someone breaks into a home without the required intent to commit theft inside but decides to steal items afterward. They shouldn't be charged with PC 460 first-degree residential burglary in that case.

When a perpetrator enters a residence intending to commit theft or felony offense, they violate Penal Code 460 PC first-degree burglary law.

Any intrusion by force to enter a home constitutes entering a residence, even slight force. This also includes using some objects to enter the house. Our California criminal defense lawyers will look closely at the laws below.

What Are the Penalties If Convicted?

The penalties for first-degree residential burglary always depend on the unique circumstances, but they usually include the following:

  • always charged as a felony offense,
  • punishable by a maximum of six years in state prison,
  • a maximum $10,000 fine, and
  • formal felony probation.

Further, Penal Code 460 PC residential burglary is considered a strike under California's three strikes law. This is a serious crime, but if someone is home during the burglary, the crime is considered both a severe and violent crime.

Residential burglary is considered a crime involving moral turpitude, meaning it could have harsh collateral consequences for non-U.S. citizens and licensed professionals.

What Are the Related Statutes?

  • Penal Code 459 PC – burglary,
  • Penal Code 464 PC – burglary of a safe or vault,
  • Penal Code 466 PC – possession of burglary tools,
  • Penal Code 496 PC – receiving stolen property,
  • Penal Code 487 PC – grand theft,
  • Penal Code 211 PC – robbery,
  • Penal Code 602 PC – trespassing.

What Are Some Defenses for Residential Burglary?

The judges will imprison them, and the prosecutors will argue for the same for residential burglary cases. To avoid prison, you must set yourself apart from the standard residential burglary. 

The way that you do that is to show a factor or factors that are usually present in a state prison burglary case that is not present in your case.

Residential Burglary Defense Lawyer in Los Angeles

For example, let's say you didn't make it into the house.  That's not usual.  Usually, a burglar gets in the house, takes some property, and gets away with some. 

But, if you can show that you never even made it into the house, you just broke the door plain, for example, then you argue that your burglary is outside the norm, and therefore, you shouldn't be sent to prison.

Another argument might be that you didn't get any property.  Let's say that nobody lost anything.  Sometimes people go in with the intent to commit a felony and then do not take any property. 

That would certainly be a good argument that you shouldn't get treated as a full-fledged burglar.  Perhaps the dwelling is not considered an inhabited dwelling as it was vacant and for sale. This legal argument is often used to reduce a charge to second-degree burglary, which comes with lesser penalties.

Perhaps there was no physical entry into the dwelling, such as you only opening an unlocked door or window. Another thing they look at in determining whether or not you should go to prison is your criminal record. 

If you can show that you're young, have no record, have a job, and your activities were an aberration, you might have a chance to avoid the harsh penalties of a full-fledged burglary.

Exposing Weaknesses in the Prosecutor's Case

Another way you might be able to avoid prison in a burglary case is if the prosecutors have problems proving your case.  In other words, you get a powerful criminal defense attorney like me who's been doing it for 30 years; I point out to the prosecutors that they might not be able to prove a full-fledged burglary.

Defenses for California Burglary Charges

That would undoubtedly be a powerful argument that you shouldn't have to plead to the burglary if they're potentially losing a jury trial.  Maybe you could get another charge, like a 487(c), which is a grand theft person. 

It's not a strike.  You will not likely go to prison.  It is a much better charge than a residential burglary. So, you start to think that you will have to take your case out of the ordinary. 

Unfortunately, you're not equipped to do it.  That's why you get somebody like me involved.  I will put together a mitigation packet for the prosecutors and set about trying to keep you out of prison.

I will use my experience, having worked for the DA's office in East Los Angeles in the early 1990s and having worked for a superior court judge, and then having been a criminal defense attorney defending people just like you in Los Angeles county and throughout surrounding counties and having great success.

Pick up the phone now.  Ask for a meeting with Ron Hedding.  I stand at the ready to help you. The Hedding Law Firm provides a free case consultation by phone or use the contact form.